1. All the aforesaid appeals and revision applications could be disposed of together as they arise out of the same trial held by the Special Judicial Magistrate and Presidency Magistrate, II Court, Esplanade, Bombay. The first five appeals are by the accused-Laxmipat, accused. No. 1; Punamchand, accused No. 2; Balchand, accused No. 3; Kundanmal, accused No. 5; and Sanchitlal Daga, accused No. 6. The other appeal is by the State of Maharashtra against the order of the Special Magistrate acquitting the accused Hanmantlal Kothari, accused No. 8 at the trial. The revision application is by the State of Maharashtra, praying that the sentences passed against the aforesaid convicted accused be adequately enhanced.
2. The aforesaid six accused were being prosecuted for an offence under Section 120-B, Indian Penal Code, for being parties to a criminal conspiracy along with one Yau Monkchi Ethyl Wong and others, between February 1, 1959 and February 31, 1959, to acquire possession of and to be concerned in carrying, removing, harbouring, keeping, concealing and dealing with gold and precious and semi-precious stones chargeable with duty knowingly and with intent to defraud Government of duty payable thereon, and with intent to evade the prohibitory restriction for the time being in force with respect to gold and thereby having committed an offence punishable under Section 120-B, Indian Penal Code, read with Section 167(81) of the Sea Customs Act, 1878, The accused were further charged on four specific counts for having committed an offence under Section 167(81) in pursuance of the aforesaid conspiracy. It is not necessary to refer to all the details. All the aforesaid appellants-accused are convicted under Section 120-B, Indian Penal Code. Further, accused No. 1, Laxmipat, accused No. 2, Punamchand and accused No. 6, Sanchitlal Daga, are convicted under Section 167(81) on all the four counts, and accused No. 3, Balchand, has been convicted under Section 167(81) on three counts and accused No. 5 has been convicted under Section 167(57) on two counts. They have all been sentenced to various terms of imprisonment and also fine has been imposed on them.
3. The following facts are now no more in dispute. Laxmipat, Punamchand, Balchand and Kundanmal are brothers, Punamchand being the oldest of all of them. Sanchitlal Daga was their employee. Laxmipat and Punamchand, at the material time, resided at 144, Cotton Street, Calcutta and did business there. Accused No. 1, Laxmipat, also has business in Hong Kong and is doing business there under the name and style of Global Agencies at 28 Hollywood Road, Hong Kong. Accused No. 6 was the manager at Hong Kong, managing the business of Global Agencies since 1957 to March 4, 1959. Accused No. 5, Kundanmal, went to Hong Kong on February 25, 1959, to relieve accused No. 6, Sanchitlal Daga. From March 4, 1959, Kundanmal was the manager of Global Agencies till September 27, 1959. Accused No. 6 again went back to Hong Kong on or about August 19, 1959, and was its sole manager at any rate after September 27, 1959, to the end of the period of conspiracy. At the material time, accused No. 3, Balchand, was in charge of the Bombay branch of the business, and was residing at the top floor of Shalimar Building situate opposite Marine Lines Station. The business premises were situated on the third floor of Banuman Buildings, Tambakanta Road, Bombay. The telephone numbers and telegraph addresses of these persons as well as the Global Agencies, which were at one time in dispute, are now admitted.
4. Yau Monkchi resides in Hong Kong and is doing business at his office located at 910 Yu To Sang building, Queens Road, Hong Kong. Yau is referred to in the correspondence as Yau or Yasmin. He is a Chinese citizen.
5. Sophia Wong P.W. 3, was an Air Hostess on the B.O.A.C. Air Lines, till the end of October 1959 and in course of her duties had to fly on the Hong Kong Calcutta route. In Calcutta, she used to stay at the Great Eastern Hotel. In her first trip to Calcutta, she met Yau Monkchi on being introduced by another Air Hostess Miss Tina Yup. Yau told her that he was in a tea business. During her stay in Calcutta, she met Yau three or four times and they exchanged cards as appears to be the custom among the Chinese. Sometime in September 1959, Yau rang her up and told her that he would like to come to see her at her house. She was not inclined to receive him at her house, and therefore she fixed up an appointment with him at the Grand Hotel Restaurant in Hong Kong. He kept the appointment and met her there. During the course of the conversation, he told her that he was purchasing a boat and invited her to join the cruise. She asked him what was the purpose of his meeting her and he replied that he wanted to do some business with her. She inquired as regards the nature of the business, and he told her that he wanted her to carry gold from Hong Kong to India and hand it over to somebody in Calcutta. He further informed her that she would be carrying gold concealed in a suit case He also told her that he would pay her 1500 Hong Kong dollars for every trip she carried gold for him to India and further stated that before she carried the gold, he would tell her the name of the person in Calcutta and he would show the photograph of the person to whom the gold was to be delivered in Calcutta and also his telephone number, so that she would be in a position to contact and recognise him. He further promised to provide a suit ease in which the gold would be carried. She considered the proposal to be a dangerous one, but Yau assured her that there was no risk involved therein and there was nothing to worry. He further warned her that she should not speak about it to anybody and if she divulged the secret he would get her anywhere. Feeling uneasy in her mind about the talk which she had with Yau, she spoke about it to Miss Curtin, P.W. 10, who was the Supervisor of the Air Hostesses in the B.O.A.C. office in Hong Kong, and told her that in these circumstances she would resign her job as an Air Hostess as she was frightened. Later she also told about the talk she had with Yau to one Olson whom she knew, and who at the material time was the service manager of B.O.A.C. She further told the same story to Mr. Harris, Police Officer in Hong Kong. As a result of her conversation with Mr. Olson and Mr. Harris, she agreed to meet Yau again, and on September 24, 1959, she met him at the Grand Hotel Restaurant by previous arrangement. He asked her to take gold from Hong Kong to Calcutta and to bring American Travellers' cheques from Calcutta. He stated that he had his men at Calcutta as well as at Bombay. Her next trip was to Delhi. He, therefore, proposed that she should carry gold on her next flight to Delhi and from Delhi she should send the gold by postal parcel to Calcutta. Thereafter he put in a telephone call and told her to forget about it and stated that he would contact her again and she should carry gold to Calcutta on her next trip. I should have stated earlier that Sophia at that time was not married, but was engaged to one Shielts, Police Sub-Inspector, whom she married by the time she gave evidence in Court. After the aforesaid conversation with. Yau, she straight way went to her fiancee Shielts and told him in detail about the conversation she had with Yau. Shielts recorded on the typewriter what she had told him. She read the typed copy and satisfied herself that Shielts had correctly recorded what she told him. Shielts then called Mr. Harris on telephone and on his arrival at Shielt's flat handed over the statement to him. That statement has been filed on record and it is marked as exh, 9. It bears Sophia's signature. It appears that Mr, Harris informed about these happening to Mr, Buchanan, Senior Security Officer of the B.0.A.C, having his office in London, and in response Mr. Buchanan had come to Hong Kong sometime in October 1959. On October 27, 1959, Yau contacted Sophia and she fixed up ian appointment to meet him on October 29, 1959. It appears that a false roster was prepared for her showing that she was to fly to Calcutta on her next flight. On meeting Yau on October 29, she told him that she was prepared to carry gold and showed him the roster. Yau then told her that he would meet her at her flat that evening and bring the suit case and gold with him at that time. That suit ease was to be used by her as her own suit case, and she should fill in the suit case with her clothes, so that the suit case should look filled. After this interview, she told Shielts about the arrangement she had made with Yau and it was arranged that Sub-Inspector Yu Tat Ming, P.W. 4, with two detectives should go to her flat before Yau arrived and lay in a trap. Mr. Yu and the two detectives accordingly went to her place and kept themselves hiding in a bed-room which was in use of Sophia's mother. It was arranged between Mr. Yu and her that when Yau showed her gold, she should give him a signal by going into the bath room and slamming its door twice. Yau came to her flat at about 8p.m. that night with a grey suit ease. They sat in the sitting room and she asked him to show gold. He stated that he would not show her gold in the sitting room as they might be seen by others. Both of them then went into the bedroom and she drew up the curtain of the bed-room but did not close the bedroom door, telling that there was nobody in the house. It appears that at the bottom of the bed-room doors both of hers as well as her mother's bed-room there was a small opening in which bars were fixed and by kneeling down one could see through the bars what was happening in the other bed-room. After going into her bed-room, he put the suit case on the bed and showed her where the gold was hidden. He unscrewed the right hand bottom metal corner with a specially made key and when the corner was opened two small pieces of thread became visible. He then removed the corner and pulled two strips of gold from each side of the suit case meeting at that corner. He then similarly took out two more strips of gold from the diagonally opposite corner by removing the metal corner with the same key. He then put back the gold strips and refastened the metal corners and locked it. He then handed over the key to her and asked her to take out the gold. By following the method shown, she then took out the strips and put them back again. They then left the suit case in the bed-room and came back in the sitting room. There he showed her the photograph and gave the visiting card and told her that the photograph was of the man to whom gold was to be handed over and on the visiting card was his name and the address and telephone number. He did not hand over either the photograph or the visiting card, but asked her to copy the name, address and telephone number appearing on the visiting card. She then copied the same and went to the bath-room and gave the agreed signal and locked herself in the bath-room. On getting the signal, Sub-Inspector Yu and the two detectives came out of the other bed-room and on being asked to come out by Mr. Yu she came out of the bath-room after five minutes, She saw Sub-Inspector Yu, two detectives, Police Officers, Mr. Harris and Mr. Buchanan along with Yau standing in the lounge. She then told them where the suit case was and also the place where the gold was concealed in the suit case. She also gave to the police officer a slip of paper on which she had copied the name, address and the telephone number from the visiting card. She then showed how gold was to be taken out of the suit case and actually took out of the gold in their presence. Sub-Inspector Yu then searched Yau and took out from his pockets some money, a leather wallet and some papers. In the leather wallet were found two photographs, one of accused No. 1 and the other of accused No. 3; three pieces of paper bearing the name, address and telephone number of accused No. 3, and the visiting card of accused No. 1. Besides 26 other visiting cards including one of Ethyl Wong, P.W. 1. and one of Sophia. Mr. Yu also seized the suit case, the gold strips in the suit ease on being taken out by Sophia, the key by which Sophia had opened the bottom corners of the suit case, and the paper exh. 'Q' on which she had copied the name, address and telephone number of accused No. 1 from the visiting card shown to her, by Yau. Yu then arrested Yau.
6. Mr. Buchanan thereafter went and met the Indian High Commissioner at Hong Kong and asked him to intimate Mr. Shriwastava, P.W. 27, Deputy Director of Revenue Intelligence at Delhi. Information was given to him of the names, addresses and telephone numbers which had come out of the search of Yau. Mr. Yu also on receiving further instructions, took Yau to his office at No. 910 Yu To Sank Building and carried out the search of the premises and there seized some cables, visiting cards, goldsmith bills and a paper-slip containing addresses. He also seized the account books of Yau. Amongst the papers seized included one visiting card of accused No, 6, and five cables including one from Ethyl 'Wong saying 'Happy' Birthday Everlyn' dated September 14, 1959, sent to Hong Kong from Bombay. In due course, Yau was put up for trial and was sentenced to six months rigorous imprisonment in connection with the gold seized from Sophia's house for attempting to employ Sophia to get the gold out of Hong Kong.
7. On October 30, 1959, on receiving instructions, Detective Inspector Williams of the Hong Kong Police, P.W. 6, executed a search warrant in the premises of Global Agencies situate at 28 Hollywood Road, Hong Kong. He entered the premises at 3.30 p. m. At that time, only an office boy and a servant were present. At 4 o'clock, accused No. 6, Sanchitlal came in the premises. Williams disclosed' to him the identity and showed him his search warrant and his identity card. Accused No. 6 then told him that he was the person in charge of the premises and a search was then taken of the premises. A large number of documents which consisted of letters, cables, accounts, cheque counter-foils, cheque books, files of gold and documents and other documents were seized and were taken to the police headquarters and kept secured for the night. On the next day, on a request being made by accused No. 6, the current cheque books were returned to him.. Accused No. 6 in return passed a receipt in token of having received-those cheque books. This receipt is on record and is admitted by [accused No. 6 to be the receipt executed by him. The other documents remained in the office of Williams under his lock and key. On November 1, 1959, Mr. Shriwastava, Deputy Director of Revenue Intelligence, New Delhi, came to Hong Kong and examined the documents which had been seized from the premises of Global Agencies. Mr. Shriwastava then asked that some of the documents be photo-stated. Accordingly, those documents were taken in batches to a room and photo-stated by the clerk of the Police Department in charge of photo-stating. After each batch was photo-stated, the originals were compared with the photo-stated copies by Williams as well as the Indian Embassy Official, and a special stamp paper for the purpose was affixed on each document showing that it was correct photo-stat of the original. Out of the cables seized, only 8 have been photo-stated, and of the rest copies were prepared as the photo-stat paper ran out. On the copies made by hand also, the aforesaid seal has been affixed as they being correct copies of the originals. After this was done, the originals of all the documents were taken back by Williams and kept in office till February 17, 1960, on which date they were returned to accused No. 6 on his request, under instructions of Superintendent Hanais. At the time of returning the documents to him, Mr. Williams took an undertaking from accused No. 6 that he would produce the documents when required and also obtained from him a receipt for having received the documents back. The undertaking executed by accused No. 6 is on record and is exh. Z-4. The photo-stats and other copies of these documents were given to Mr. Shriwastava. On receiving further instructions, Williams went to the premises of Global Agencies on April 29, 1960, and reminding accused No. 6 of his undertaking asked him to produce the documents. Accused No. 6 then handed back the original documents which had been seized from the premises of the Global Agencies to Williams, Later, however, in consequence of the order made by the Supreme Court of Hong Kong, these documents were returned by Mr. Williams to the clerk of the solicitors representing accused No. 6, on obtaining a receipt from him. At the trial, a notice was issued to all the accused to produce the original documents. All the accused except accused No. 6 stated that they did not receive the documents while accused No. 6 stated that the documents were not with him. The learned Magistrate has therefore allowed the prosecution to file the photo-stat copies made of these documents as secondary evidence of the contents of these documents. It may be stated that those documents contained letters written by the accused persons and in particular by accused Nos. 1, 2 and 3 and certain cables which form the material evidence in the case connecting the accused with the commission of the offence.
8. Now, on receiving the information from the Indian High Commissioner in Hong Kong about the seizure of photographs of accused Nos. 1 and 3, the visiting card of accused No. 1, and slips of paper containing the address of accused No. 3 from the person of Yau, the Director of Revenue Intelligence, Delhi, ordered searches to be carried out at various places both at Bombay and at Calcutta. Accordingly on October 31, 1959, P.W. 31, Basu, a Customs Officer at Calcutta, searched the residence of accused No. 1 at 144, Cotton Street, of which the telephone number was mentioned on the visiting card of accused No. 1 found with Yau. The flat was on the third floor, and consisted of three rooms, an open space, a kitchen, bath-room and a lavatory. Accused No. 2 and the wife and children of accused No. 1 were present in the house. Accused No. 1 also returned to the flat sometime after Basu had entered the fiat. He was informed by accused No. 1 that one bed-room and a drawing room were occupied by accused No. 2. Accused No. 2 also confirmed this information. In the search a number of documents were seized including two diaries belonging to accused No. 1. They are Z-54 and Z-74, and some letters addressed to accused Nos. 1 and 2. On the same day, another Customs Officer, Datta, searched the premises of Bhuramal Manekchand at 4, Doyahatta Street, which was the address mentioned in the visiting card of accused No. 1 found with Yau Mok Chi, and in the search, a number of documents were seized including letters addressed to one P.C. Jain, a partnership deed, and an assessment order relating to accused No. 2 in regard to his firm at Mymensingh and some other documents relating to accused Nos. 1 and 2. At Bombay also on the same day, i.e. October 31, 1959, Preventive Officer Shirur of Bombay Customs searched the premises of B.L. Choraria & Co., Hanuman Building, third floor, Tambakanta Street, the address of accused No. 3, found in the papers seized from the person of Yau. At the premises, accused No. 3 was present. Shirur took charge of certain documents including a letter addressed to accused No. 3 from Assam. On February 22, 1960, Chaudhary, an officer of the Calcutta Customs, again searched the premises of Bhuramal at 4, Doyahatta Street, and seized a number of documents including letters addressed to accused Nos. 1 and 2, a dissolution deed of B.L. Choraria & Co., Calcutta, between accused Nos. 1 and 5 and their brother Girdharilal. On the same day, Preventive Officer Shirur of Bombay Customs searched the flat of accused No. 3 in the Shalimar Building, opposite Marine Lines Station, and took charge of a number of documents including an agreement for the purchase of that flat. On the same day, Preventive Officer Kazi of the Calcutta Customs, in the presence of the Assistant Collector, Mehta, searched the premises of B.L. Choraria & Co. in Hanuman Building and seized a number of documents which are Z-103 to Z-109. At this time also, accused No. 3 was present at the premises. On the next -day, i.e. February 23, 1960, Basu, Officer from Calcutta Customs, searched the premises of accused No. 1 at 1, Minto Park, which is another residence of accused No. 1. Accused No. 1 was not present then. In the search, 34 visiting cards of accused No. 1 were seized from his cupboard. On the same day, Gupta, another Officer of Calcutta Customs, again searched the premises of Bhuramal at 4, Doyahatta Street, and took charge of a number of documents including 4 greeting cards and one picture card addressed to accused No. 2. We should have mentioned earlier that on November 4, 1959, Preventive Officer Mitter of Calcutta Customs searched the premises of the firm of Balchand in room No. 27' at 4, Doyahatta Street and recovered therefrom a number of letters addressed to accused No. 1, including one from the Ordnance Club, Calcutta. On June 15, 1960, Pande, Inspector of the Central Excise of Rajasthan, searched at Village Bidsar in Rajasthan the ancestral house of accused Lasmipat, Punamchand, Balchand, Kundanmal and Begraj. The documents seized included a diary of accused No. 2, a letter purported to be written by accused No. 3 to Bhograj, and an insurance certificate of the ear of accused No. 3. On January 13, 1961, Preventive Officer Advani of Bombay Customs again searched the premises of Balchand at Tambakanta Street, Bombay.
9. In September 1959, Williams took charge of a number of cheques from Clm Tai Bank and the Wing Lang Bank of Hong Kong, and they had also been seized and photo-stated. Similarly, in November 1959, under the instructions of Deputy Director Shriwastava, Williams made inquiries from cable and Wireless Hong Kong about the telegraphic addresses 'Daga Co.' and 'Bomcal' to which various cables seized from the Global Agencies appeared to be addressed, and also about another telephonic address 'Chorpken'. He found that 'Bomcal' was the-address of Global Agencies, 28 Hollywood Road, Hong Kong, and 'Daga Co.' the address of S.L. Daga for the same premises, and 'Chorpken' the telegraphic address of Yau Mok Chi's office premises. The Calcutta Customs had also taken charge of the originals of some of the cables found at Global Agencies, Hong Kong, and Inspector Sampat took charge of them, from Calcutta Customs along with two letters and a receipt admittedly to be of accused No. 1 seized by the Calcutta Customs and lying with them.
10. A number of all. these documents seized from the various premises along with the originals of the cables and diaries were sent to the Handwriting Expert for comparison. So also various letters seized from the office of Global Agencies, Hong Kong, were sent to the Handwriting Expert. The letters seized from the Global Agencies were divided into different series. Those purporting to be written by Laxmipat were marked as LC series; those purporting to be written by Punamchand were marked as PC series; those written by Balchand, BC series; those written by Kundanmal as KC series; and that by Hanmantlal Kothari, as UK series.
11. In March 1960, Mr. Shriwastava left the Directory, and thereafter he was not directly responsible for the investigation and the investigation appears to have been taken over by Mishra. But before he retired, it appears that Shriwastava had already been making inquiries in Hong Kong about the whereabouts of Ethyl Wong, Air Hostess, a wire 'Happy Birthday Everlyn' from whom was seized from the premises of Yau, but he was unable to locate her. That information appears to have been placed by him on record and the investigation in that matter was taken over by Mishra. On April 6, 1960, a complaint was filed in the Court of the Chief Presidency Magistrate by K.S. Dulipsinghji, Assistant Collector of Customs Preventive Department, Bombay, against the accused Laxmipat, Punamehand, Balchand, Bhuramal, Kundanmal,, Sanchitlal Daga, Bhegraj, Hanmantlal Kothari, Ganeshmal, Bhivraj, and Yau Mok Chi, and in this complaint, accused No. 12 was shown as an unknown carrier. Bhegraj, Ganeshmal and Bhivraj were discharged. The trial did not proceed against Bhuramal and Yau Mok Chi, they being outside India, and not being brought into India, The trial, therefore, proceeded only against Laxmipat, Punamchand, Balchand, Kundanmal, Hanmantlal Kothari and Sanchitlal Daga, of whom Hanmantlal Kothari has been acquitted. The prosecution case in brief was that during the period commencing from about the beginning of March 1959 and extending upto October 31, 1959, the aforesaid accused and others unknown, conspired at Calcutta, Bombay and other places, for acquiring and/or causing to be acquired possession of and/or carrying and/or causing to be carried, and/or removing and/or causing to be removed, and/or harbouring and/or causing to be harboured, and/or depositing and/or causing to be deposited, and/or keeping and/or causing to be kept, and/or concealing and/or causing to be concealed and/or otherwise dealing with and/or for being concerned with one or more of the aforesaid operations connected with contraband gold and precious stones and semi precious stones in large quantities of the total value of Rs. 3,00,000 knowingly and with intent to defraud the Government of the duty payable thereon and to evade the restrictions for the time being in force in respect of the importation of these articles. The said conspiracy between the above mentioned persons was a continuing conspiracy throughout the period March 1959 to October 31, 1959, at various centres including Bombay and Calcutta. The prosecution further alleged that in pursuance of the said conspiracy the aforesaid persons and others unknown from time to time on various occasions during, the period mentioned above, acquired and/or caused to be acquired possession of diverse quantities of contraband gold weighing not less than 2900 tolas and contraband precious and semi-precious stones at Bombay, Calcutta and other places, and/or carried and/or caused to be carried in and to Bombay and Calcutta and other places, and/or harboured or deposited the same in Bombay and Calcutta and other places and/or removed and/or caused to be removed the same in or to Bombay and Calcutta and other places, and/or kept and concealed and/or caused to be kept and concealed the same in Bombay, Calcutta and other places, and/or otherwise dealt with, and/or concerned themselves with one or more of the said operations connected with the said contraband gold and precious and semiprecious stones in Bombay, Calcutta and other places. The prosecution further alleged that all the aforesaid contraband gold was illegally imported into India in contravention of the various notifications referred to in the complaint. On these facts, the complainant submitted that the accused were guilty of offences punishable under Section 120B, Indian Penal Code, read with Section 167(57) of the Sea Customs Act, 167(57) of the Sea Customs Act, and Section 167(81) of the Sea Customs Act read with Section 109Govinda v. Emperor A.I.R.  Nag. 255; Queen-Empress v. Mono. Puna I.L.R.(1892) Bom. 661; Emperor v. Keshav Kortikar (1934) 37 Bom. L.R.; Ramsaran v. Emperor A.I.R. Nag. 72-; Reg v. Hanmantlal (1877) I.L.R. 1 Bom. 610; Queen Empress V. Dala Jiva I.L.R.(1885) Bom. 190; Paban Singh v. The Emperor (1906) 10 C.W.N. 847; Santokhi Beldar v. Emperor : AIR1933Pat149 , S.B.; Banu Singh v. Emperor I.L.R.(1906) Cal. 1353 and in particular to the observations made in Govinda v. Emperor; Emperor v. Keshav Kortikar; and Ramsaran v. Emperor.
21. Mr. Khandalawala, on the other hand, contends that the whole argument of the learned Counsel for the appellants-accused is misconceived. It proceeds on the assumption that Ethyl Wong was an accused person. According- to Mr. Khandalawala, she has not been made an accused inasmuch as no process was issued against her by the Magistrate. On the day the complaint was filed, her whereabouts were not known; even her name was not known to the complainant. She had not been forwarded to the Magistrate to stand her trial. She was, therefore, a competent witness on the day she entered the witness box, and in examining her, neither Article 14 nor Article 21 has been infringed. At any rate the matter has been decided by the trying Magistrate and he has refused to join her as an accused. The order may be erroneous, but no infringement of either Article 14 or Article 21 is involved in a judicial order of the Court even if it may be erroneous. In the alternative, Mr. Khandalawala argued that under the Sea Customs Act, there is an absolute right vested in the customs authorities either to forward a person for trial or not, and unless and until a customs officer in a complaint under Section 187A of the Act names a person as an accused, it is not open to the Magistrate to proceed against him treating- him as an accused person. Reference was made to some observations in Budhan Choudhry v. State of Bihar : 1955CriLJ374 .
22. Now, all these rival contentions raised by counsel for the parties relating to the admissibility of evidence of Ethyl Wong could be conveniently disposed of together inasmuch as the arguments are overlapping. The relevant Act relating to the competency of a witness to depose is the Indian Evidence Act, 1872, and when we turn to Section 118, we find that all persons have been considered competent to testify unless the Court considers that they are prevented from understanding the questions put to them,, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. To this general rule, Sections 121 to 129 are exceptions, Ethyl Wong undoubtedly is a competent witness under Section 118 of the Evidence Act, and her case does not fall under any of the exceptions contained in Sections 121 to 129 of the Act. Further, Section 133 in terms provides that an accomplice shall be a competent witness against an accused person and the conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The rule of prudence, however, has been stated in ill. (b) to Section 114, that an accomplice is unworthy of credit, unless he is corroborated in material particulars. It would thus be seen that under the provisions of the Indian Evidence Act Ethyl Wong, though she might have been an accomplice, was. a competent witness to testify against the accused who were charged with having committed offences and were put on trial.
23. It has next to be seen whether there are any other provisions in any other Act which operate as a bar to the competency of Ethyl Wong to testify, and, as already stated, reliance has been placed on certain provisions of the Criminal Procedure Code, Chapter XIV of the Code deals with the information to the police and their powers to investigate. Section 154 relates to the Procedure to be followed in recording information in cognizable cases. Section 155 relates to the Procedure to be followed in recording information in non-cognizable cases. A police officer, by virtue of Section 156 is empowered to investigate into cognizable cases. He is not authorised to investigate into non-cognizable cases unless the Magistrate orders him to do so. Powers to investigate include power to summon witnesses, power to examine witnesses, recording' their statements, power to search, and the report by the subordinate officer, when the investigation has been made by him, to the police officer in charge of the police station. It may be stated that in the event the investigating officer finds that the investigation could not be completed within 24 hours, Section 167 requires the person arrested or detained in custody to be sent to the nearest Judicial Magistrate and obtain a remand order from him. Section 169 provides that if, upon an investigation made under this Chapter, it appears to the officer in charge of the police station or to the police officer making the investigation that there is not sufficient evidence or reasonable round of suspicion to justify forwarding of the accused to a Magistrate, such officer shall, if such person is in custody release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. Sub-section (1) of Section 170 provides that if, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to is Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate, until otherwise directed. The other sub-sections of Section 170 are not material for the purposes of this case. Section 190 relates to cognizance of offences by Magistrates. Section 204(1) provides that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the second schedule, a summons should issue in the first instance, he shall issue his summons, for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or if he has no jurisdiction himself, some other Magistrate having jurisdiction. It is not necessary to refer in detail to the provisions relating to examination of witnesses, framing of charges etc., or the different Procedure to be followed in a trial of a summons case or a warrant case, or the Procedure to be followed in a summary trial. It is, however, necessary to notice certain general provisions as to inquiries and trial contained in Chapter XXIV of the Code. Section 337(1) relates to the tender of pardon to an accomplice, and it provides that in the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to seven years or any offence under any of the following sections of the Indian Penal Code, namely, Sections 161, 165, 165A, 216A, 369, 401, 435 and. 477A, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of, the offence, with a view to obtaining the evidence of airy person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. Section 338 provides that at any time after commitment, but before judgment is passed, the Court to which the commitment is made may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly connected in, or privy to, any such, offence, tender, or order the committing Magistrate or the District Magistrate to tender, a pardon on the same condition to such person. Sub-section (1) of Section 342 provides that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at, any stage of any inquiry or trial without previously warning the accused put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. Sub-section (2) of Section 342 provides that the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them but the Court and the jury, if any, may draw such inference from such refusal, or answers as it thinks just. Sub-section (5) is not material for the purpose of this ease. Sub-section (4) provides that no oath shall be administered to the accused when he is examined under Sub-section (1). Section 342A provides that any person accused of an offence before a Criminal Court, shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial, provided that (a) he shall not be called as a witness except on his own request in writing; or (b) Ids failure to give evidence shall not be made the subject of any comment by-any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial. Section 343 provides that except as provided in Sections 337 and 338, no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge.
24. Nowhere in the Criminal Procedure Code, the term 'accused' has been denned. But the word has been used in two senses-first, in the sense of a person against whom an accusation has been made but against whom no process has been issued; secondly, a person over whom a Magistrate is exercising jurisdiction by issuing a process against him. The only sections which operate as a bar on examining an accused person as a witness are Sections 342 and 342A, and there is no other section in the Criminal Procedure Code of which we are aware, or which has been pointed out to us, which enacts a bar preventing an accused person from entering the witness box. In this connection, it may be stated that Section 342 has recently been amended by Amending Act of 1955, and the concluding words 'when he is examined under Sub-section (i)' have been added by the said Amending Act in Sub-section (4). Prior to the amendment, Sub-section (4) read 'No oath shall be administered to the accused.' This amendment was necessitated because Section 342A was added by the Amending Act, and this new section enabled the accused to enter the witness box and give evidence on oath 'in disproof of the charges made against him or any person charged together with him at the same trial.' Having regard to the legislative history of Section 342 and the aforesaid amendments recently effected, it is clear that prior to the amendment, there was a total bar in the matter of administering oath to an accused person. That total bar has to certain extent been relaxed, and the oath is allowed to be administered to an accused person for the limited purpose of rendering him a competent witness in favour of his own defence or for the purpose of defence of his co-accused. The statutory bar thus created prohibiting oath to be administered to the accused and thereby preventing him from being a competent witness in a trial is applicable only to a person who has been an accused in the stricter sense in the trial, namely, a person over whom the Court has exercised jurisdiction by issuing process against him. There is thus no bar in the Criminal Procedure Code anywhere prohibiting a person who has committed a crime from giving evidence, save and except at the trial in which he has been made an accused, the Court having issued process against him. To avail the evidence of such a person in the trial the Procedure contemplated by the Criminal Procedure Code is one contained in Section 337, namely, grant of pardon. Consideration of the aforesaid relevant provisions would also show that it has not been rendered obligatory on a police officer to forward to a magistrate each and every person who might be guilty of having committed an offence. A discretion has been given, to him in this matter. Sections 169 and 170 when read together make it clear that on completion of the investigation, the investigating officer has to consider whether there is 'sufficient evidence or reasonable ground, of suspicion to justify the forwarding of the accused to a Magistrate to stand his trial.' If he comes to the conclusion that there is sufficient evidence or reasonable ground to justify the forwarding of the accused then Section 170 makes it obligatory on him to forward him to a Magistrate, and not otherwise. Similarly, when an accused is forwarded to a Magistrate, and the Magistrate has taken cognizance of an offence, it is not obligatory on the Magistrate to issue process against each and every person, shown to be an accused, and forwarded to him for trial. But, on the other hand, the provisions of Section 204, Criminal Procedure Code, enact that the Magistrate has, at that stage, before issuing process, to apply his mind and it is only if in his opinion there is sufficient ground for proceeding against the person on the material placed before him, he has to issue a process. It is thus clear that both the investigating officer as well as the Magistrate has a discretion conferred on him in this matter, obviously because the very object of forwarding an accused to a Magistrate or the Magistrate issuing a process against him, is to ascertain his guilt, and unless there be any legal evidence available against the accused, forwarding the person to stand his trial or issuing a process against him would result in waste of public time and money.
25. Turning to the facts of the case, no process has been issued by the trying Magistrate against Ethyl Wong. She is not, therefore, an accused along with the other accused who were put on trial. The bar created by Section 342 or 342A, Criminal Procedure Code, therefore, did not operate on her, and no question of granting pardon to her under Section 337, Criminal Procedure Code or withdrawing the prosecution against her under Section 494, Criminal Procedure Code arose, before she was put in the witness box. As already stated, there is no section in the Evidence Act which renders her an incompetent witness to testify at the trial of the accused. On the other hand, in view of the express provisions of the Evidence Act, she is a competent witness to testify at the trial. The mere fact that the complaint mentioned the unknown carriers as accused does not render the carrier as an accused person unless the Court issues a process against any one of those carriers, to bring their case within the mischief of Section 342 or 342A, Criminal Procedure Code.
26. It has next to be considered whether it was obligatory on the Customs Officer to send her up for trial along with the other accused after he had recorded her statement, in which she has confessed to the smuggling of gold, and whether it was obligatory on the Magistrate to allow the application of the appellants-accused wherein they had prayed that she be made a co-accused along with them. We have already stated that the provisions of Sections 169 and 170 confer a discretion on the investigating officer in the matter of forwarding a person for trial. He has to make up his mind and consider whether there is sufficient evidence to justify the forwarding of the person, and if there is sufficient evidence, he is required to forward the person to a Magistrate. On. the other hand, if there is no sufficient evidence justifying the forwarding of a person, Section 169 requires him to release the person on, his executing a bond. Similarly, Sections 202 and 204, Criminal Procedure Code, require a Magistrate to apply his mind to the material on record, and it is only when he comes to the conclusion on an examination of the material on record that there is sufficient evidence that he would be justified in issuing a process against him. Now, when Ethyl Wong's statement was recorded by the Customs Officer at the Air Port on December 27, 1960, or when her second statement was recorded on December 29, 1960, the only material evidence against her which the Customs Officer had before him were these two statements. It has not been urged before us that there was any other material. We have in narrating facts referred to the application made by the accused persons before the Magistrate, and the only material to which reference has been made in the application, which according to the appellants-accused, is evidence against her, is her own evidence. That material can hardly be said to be sufficient evidence justifying forwarding her for trial or issuing a process against her. There is no doubt that had she been put on trial, she would have retracted the statements made by her to the Customs Officer. It is well settled principle of prudence that even a confession duly recorded by a Magistrate is a very weak piece of evidence against the accused, unless it finds corroboration in material particulars. It is true that the statement having been recorded by the Customs Officer, the bar under Section 162, Criminal Procedure Code, may not come into play in respect of its admissibility as a substantive piece of evidence, but the weight that could be attached to it cannot be higher than that to a retracted confession. The statement recorded by the Customs Officer would, therefore, not necessarily amount to a sufficient ground for proceeding against her within the meaning of Section 204, Criminal Procedure Code. It has to be noticed that the trying Magistrate has in his. order stated that he would consider the question of proceeding against her after this trial is over when he has a full and clear picture before him. In our opinion, therefore, neither the Customs Officer nor the Magistrate has committed a breach of either Section 170 or Section 204, Criminal Procedure Code, respectively. We may observe that Section 170 is in terms, applicable only to the police officer and not to the Customs Officer. However, the ease having been argued on the footing that the principle underlying the provisions of Sections 169 and 170, Criminal Procedure Code also governed the investigation made by Customs Officer, we are proceeding to consider the case on that footing. As already stated, on the facts and in the circumstances of the case, there has been no breach of Section 170 on the part of the Customs Officer, and no breach of Section 204 on the part of the trying Magistrate. It, therefore, also cannot be said that there has been any violation of Article 21 of the Constitution, inasmuch as, in our opinion, in examining Ethyl Wong, there has been no breach of any Procedure prescribed by law. On the other hand, in our judgment, the appellants-accused have been convicted in accordance with the Procedure prescribed by law.
27. In our opinion, there has been no breach of Article 14 of the Constitution also. Article 14 has been recently considered by their Lordships of the Supreme Court in Bam, Krishna Dalmia v. Justice Tendolkar : 1SCR279 and the general principle is well summarised in the Head-Note(d) in the following terms:
It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of the Supreme Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.
In the matter of forwarding a person, who might have committed a crime, Sections 169 and 170, Criminal Procedure Code make a distinction between those against whom there is sufficient evidence or reasonable ground of suspicion justifying their forwarding and those against whom there is not sufficient evidence or reasonable ground of suspicion to justify their forwarding. This, classification is intelligible having regard to the object of forwarding the accused for trial. The object of forwarding the accused is to ascertain his guilt. If there is no sufficient legal evidence against a person, there can be little doubt that forwarding such a person to a Magistrate to stand his trial would only involve waste of public time and money. Further, the discretion left to the Investigating Officer in the matter is not absolute. The Investigating Officer may not forward a person, and yet it is open to the Magistrate, taking cognizance of the offence, to issue a process against him under Section 204, Criminal Procedure Code, if, in his opinion, there is sufficient ground for proceeding against such a person. Sections 169 and 170, Criminal Procedure Code have not been challenged before us as unconstitutional. On the other hand, what is challenged before us is the action of the Customs Officer in not forwarding Ethyl Wong for trial as being violative of Article 14 of the Constitution. The appellants-accused and Ethyl Wong are not similarly situated. The evidence against the appellants-accused does not consist of confession or admission of guilt made by them during1 the investigation, while the evidence, if there be any, against Ethyl Wong is only her statement made by her during the investigation-. We have already discussed that a mere admission of guilt or confession during the investigation does not necessarily amount to sufficient evidence within the meaning of Section 170, Criminal Procedure Code, requiring the Police Officer to forward an accused person to a Magistrate. That being the position, there has been no violation of Article 14 in not forwarding her to stand her trial along with the accused.
28. For reasons stated above, in our opinion, the three-fold contentions raised on behalf of the appellants-accused relating to the admissibility of the evidence of Ethyl Wong should fail.
29. And this brings us to the consideration of the decisions to which reference has been made by the learned Counsel for the appellants-accused. In our opinion, these decisions are distinguishable on facts, and hardly assist the case of the appellants-accused.
30. In Govinda v. Emperor, the facts were that the appellants-accused together with one S were members of a gang and had jointly fabricated a bond. One of the accused had used that bond in a civil suit. It was discovered that the bond, on the basis of which the suit was filed by the accused, was fabricated. Sanction of the civil Court was necessary to prosecute that accused and others for fabricating false documents. The police promised to grant pardon to S, and he was examined as a witness before the civil Court. The civil Court granted sanction. At the trial, however, was not made an accused, nor was pardon granted to him under Section 337, Criminal Procedure Code. On the other hand, S was examined at the trial as a witness against the appellants-accused, and on the strength of his evidence, they were convicted and sentenced. An objection was raised that S should have been placed before the Magistrate as an accused, and pardon granted to him under Section 337, Criminal Procedure Code; that not having been done, his evidence was inadmissible. It was further contended that his evidence was irrelevant under Section 24 of the Evidence Act, because the police inspector had granted pardon to. In these circumstances, it was held that S ought to have been tried along with the appellants-accused and the Magistrate ought to have issued a process against him under Section 204, Criminal Procedure Code, and the failure on the part of the Magistrate to issue process against him had seriously prejudiced the other appellants-accused, and consequently vitiated the whole proceedings. The observations, on which particular reliance has been placed are in the following terms (p. 260) :.It is true that the prosecution is not bound to have a pardon tendered to a person against whom there is evidence and is at liberty to put him up either for a joint or separate trial. But it is evasion of the law not to adopt any of these courses and tender him as witness under an unauthorised promise of pardon by pledging public faith not to prosecute him.
It is contended that such is the case here. The Customs Officer has neither put her up for trial along with the other accused, nor has he put her up to stand a separate trial, but, on the other hand, has granted her unauthorised pardon. We would later consider whether an unauthorised pardon has been granted to her by the Customs Officer. The aforesaid observations have been made in the context of the facts of that case, inasmuch as it appears that in the view of the learned Judge, there was evidence against S besides his own statement which would have justified his being put up for trial, and in these circumstances, it has been observed that he ought to have been put up for trial along with the other accused or separately tried, and that not having been done, it amounted to an evasion of the provisions of the Criminal Pro> Procedure Code. The following observations that precede the aforesaid observations make the position clear (p. 259) :.An accomplice against whom there is no case apart from his own confession to the police may lawfully be kept back and tendered as a witness, for even a 'reasonable suspicion' cannot be based on what the law declares to be irrelevant. This however is not the position taken up here on behalf of the Crown, and in view of the manner in which the case was presented before the Magistrate it would be difficult to maintain it.
Further, the view taken in Govinda v. Emperor has been over-ruled by a Full Bench decision of the Nagpur Judicial Commissioner's Court in Amdumiyan Guljar Patel v. Emperor Pollock A.J.C. in that case observed (p. 23) :
I agree that Section 337, Criminal P.C., is merely an enabling section that empowers a Magistrate to grant a pardon to any person supposed to be concerned in or privy to-the offence and that the word 'accused' in Sections 342 and 343 must mean a person who is accused in the case that is proceeding before the Magistrate. There was therefore nothing to prevent the administration of an oath to Shrawan and he was therefore a competent witness. The view expressed in Govinda v. Emperor, that in such a case it is imperative for the Magistrate to proceed against Shrawan and that his failure to do so makes the proceedings invalid, seems to me to be quite untenable. It is for the executive authorities to decide who is to be prosecuted, and under Section 204 the Magistrate must issue a summons, if he is of opinion that there is sufficient ground for proceeding, merely against those persons against whom a police report had been sent in under Section 170. I also agree that this method of obtaining evidence is contrary to the spirit of the Code and is strongly to be deprecated. It is not however illegal, but the evidence of a witness in Shrawan's position must ordinarily be of less value than that of a person who has been granted a valid pardon and is no longer under fear of a prosecution.' For the purposes of this case, it is not necessary for us to go to the extent the observations cited take us. It is sufficient to state that, at any rate, there is no illegality in not forwarding a person, against whom there is no evidence except his own statement. There is also no illegality in not issuing a process against such a person. What weight is to be given to his evidence would depend on the circumstances of the case.
31. In Emperor v. Keshav Kortikar, the facts were that on a complaint having been made to the police, an investigation was made, and a charge-sheet was sent up to the Magistrate in which the names of five persons were shown as accused persons. Two other persons, against whom there was evidence but who were meant to be used as witnesses against the accused persons, were mentioned in the column headed: 'names and addresses of accused persons not sent up for trial', and also in the list of witnesses. At the trial of the accused, these two persons were examined as witnesses for the prosecution. A contention was raised on behalf of the accused who were sent for trial that the evidence of these witnesses was inadmissible. The observations of the learned Chief Justice on which strong reliance has been placed are in the following terms (p. 180) :.As I have said, in my opinion, the proper course for the police to have adopted was to send up as accused persons to the Magistrate all those against whom they had obtained evidence in connection with the alleged offence, and I think that the learned Magistrate, when he found that the two persons described as accused persons not sent up for trial were amongst the witnesses, and must, therefore, be available, ought to have had those two persons arrested and brought before him. The Criminal Procedure Code gives certain powers under which the evidence of an accomplice can be made available. He can be granted a conditional pardon by the Magistrate under Section 337 of the Criminal Procedure Code, or the Public Prosecutor, with the consent of the Magistrate, can withdraw the charge under Section 494 of the Criminal Procedure Code. In my opinion those powers ought to be exercised where the prosecution consider that the evidence of an accomplice is necessary, and the police have no right to take upon themselves not to charge a person against whom they have evidence because they require him as a witness. Where that improper course is adopted, the evidence of the accomplice so obtained is entitled to very little weight.
It is contended that these observations equally apply to the facts of the present case. It is further argued that though such a course when adopted might have been improper prior to the Constitution coming into force, now it amounts to an illegality inasmuch as the Procedure prescribed by law is not followed. According to Mr. Jethinalani, the Procedure prescribed by law is that all persons who are suspected of having committed a crime must be sent up to the Magistrate by the police and the Magistrate also must in his turn issue a process against such persons even though the police failed to perform their duty. If the prosecution wants to examine any such person as a prosecution witness, the only course available is to have a conditional pardon under Section 837, Criminal Procedure Code, granted to him or withdraw the prosecution against him under Section 494, Criminal Procedure Code. It is difficult to accept the argument of Mr. Jethmalani. In our opinion, Article 21 has not the effect of turning what was merely an impropriety or irregularity prior to the coming' into force of the ' Constitution into an illegality after its coming into force. On the other hand, all that is provided by Article 21 is that if a person is to be deprived of his liberty, the Procedure prescribed by law has to be followed. The Procedure itself is in no manner changed. Apart from it, even assuming that the contention raised has any force, the observations, have no application to the facts of the present case. The argument advanced overlooks the material part of the observations: 'against whom they (prosecution) had obtained evidence in connection with the alleged offence.' This part of the observation clearly indicates that the obligation is to send up for trial all persons against whom the police have obtained evidence during the course of the investigation. 'Evidence' clearly would mean legally admissible evidence sufficient to justify the conclusion that the conviction of the accused could prima facie be reasonably obtained. The observations do not mean that each and every person who might have committed an offence or taken part in the commission of the offence has to be sent up for trial. The learned Chief Justice in consider- ing the question as to the admissibility of the evidence of even these two per-sons further observed (p. 181) :.in my opinion, however irregular was the conduct of the police in. this case, in point of fact these two persons, Laulkar and Limaye, included in the second column of the charge-sheet, never were, properly speaking, accused persons. They certainly were not accused persons within the meaning of Section 342 of the Criminal Procedure Code. They were never under arrest and they were never sent up before a Magistrate and no process was ever issued against them. That being so, I think there is no provision of law which makes their evidence inadmissible.
The other learned Judge also similarly observed (p. 181) :.The section which prevents an accused being examined on oath is Section 342 of the Criminal Procedure Code. That section, however, applies clearly only to a person who is on trial before a Court at the time, and he can be so brought before the Court only after process has been issued by the Magistrate against him under Section 204 of the Criminal Procedure Code. In the present case admittedly no such process had been issued against Laulkar and he was, therefore, never before the Court as an accused. The mere inclusion of his name in the charge-sheet could not make him an accused for the purposes of Section 342 of the Criminal Procedure Code... I, therefore, agree that there was no legal objection to Laulkar being examined on oath as a witness.
These material observations clearly support the view taken by us and run counter to the contention raised on behalf of the appellants-accused.
32. The question that arose in Ramsaran v. Emperor, was whether the Magistrate acted properly in allowing the case to be withdrawn against the accused who was put up for trial for having committed a serious offence, and who had confessed to the commission of the crime, so as to enable the prosecution to examine him at the trial. In these circumstances of the case it was held that the Magistrate did not act properly in allowing the prosecution to withdraw the case against such accused under Section 494, Criminal Procedure Code. The learned Judge took the view that. in cases where the prosecution wants to rely on the evidence of a dubious witness and get a man, who on his own confession is guilty, pardoned, then, if the offence falls within certain serious classes, Section 494 is not good enough and the trial should be by a Court of Session. It would be a wrong exercise of discretion to proceed under Section 494 when the provisions of Section 337(1) are available. If it is reprehensible to evade the rigors of Section 337(1) by not prosecuting the man at all, it is much more so after he has been arraigned as an accused and the trial has commenced.
It is to be noticed that this decision is distinguishable on facts. In the case before us, Ethyl Wong had not been sent up for trial, nor was there any evidence against her in the shape of her confession duly recorded by a Magistrate under Section 164, Criminal Procedure Code.
33. The material facts in Beg v. Hanmanta, were that a number of accused were sent up to stand their trial before a Magistrate for having committed certain frauds. To two of the accused, the Magistrate granted pardon under Section 337 of the then Criminal Procedure Code, on condition of their making a full disclosure of all the circumstances within their knowledge, and then these two accused were examined as witnesses. A question arose as to the admissibility of the evidence of these two witnesses, and it was held that under the provisions of the said section, as it then stood, pardon could only be granted in case' of those offences which were specified in the Schedule of the Code as triable exclusively by the Court of Session. The offence of which the accused were charged was not such an offence. In these circumstances, it was held that the' pardon granted was not a legal pardon, and therefore, these two accused not having been granted pardon legally, were not competent witnesses, and their evidence must, therefore, be rejected as absolutely inadmissible.
34. In Queen-Empress v. Data Jiva, the view taken is similar to the one taken in Hanmanta's case, that pardon cannot be legally granted in a ease which is not triable exclusively by a Court of Session.
35. The facts in Paban Singh v. The Emperor were that after the accused had been forwarded to the Magistrate for trial, the local Government granted a conditional pardon to one of the accused, and the prosecution then examined him as a witness at the trial. It was held that the only competent authority to grant pardon is one mentioned in Sections 337 and 338, Criminal Procedure Code and the local Government had no power to grant pardon. Pardon not having been granted by a competent authority was of no avail and the evidence was, therefore, inadmissible.
36. In Banu Singh v. Emperor, a number of accused were sent up for trial along with one Mohendra. The Court purporting to act under Section 494, Criminal Procedure Code sanctioned withdrawal of the prosecution against Mohendra, but omitted to record a proper order of discharge of Mohendra as required by Clause (a) of Section 494. He was then examined as a witness. A question arose as to the admissibility of his evidence as against the other accused.. The view taken was that there having been no order of discharge made by the Magistrate after allowing the withdrawal of the ease as required by Section 494, Mohendra still continued to be an accused, and therefore, was an incompetent witness.
37. It would be seen that the aforesaid decisions in Beg v. Hanmanta, Queen-Empress v. Data Jiva, Paban Sing v. The Emperor and Banu Singh v. Emperor have no relevance to the facts of the present case.
38. Similarly, the decision in Queen-Empress v. Mama Puna has no application to the facts of the present case. But, on the other hand, in our opinion, it runs counter to the contentions raised. The facts in that case were that during the course of the police investigation into a case of house breaking and theft several, persons were arrested, one of whom named. Hard made a certain disclosure to the police and pointed out several houses broken into by his accomplices. Thereupon the police discharged him, and made him a witness. At the trial, he gave evidence against his accomplices, who were all convicted. A question arose as to the admissibility of the evidence of Hari and it was held that inasmuch as the trying Magistrate did not exercise any jurisdiction over Hari, he was not an accused person within the meaning of Section 342, Criminal Procedure Code. His evidence, therefore, was admissible against his accomplices who were put on trial.
39. Considering these cases, the propositions that would follow are that a person becomes an accused person only when a, process is issued against him by a Magistrate. It is only such an accused who is incompetent to depose at the trial against his other co-accused in absence of any conditional grant of pardon under Section 337, Criminal Procedure Code, by a competent authority, or withdrawal of the prosecution case against him under Section 494, Criminal Procedure Code and after a formal order of discharge or acquittal, having been recorded by a Magistrate in that respect. A person over whom the Magistrate does not exercise jurisdiction by issuing a process against him is a competent witness against his accomplice. There is no legal bar to the admissibility of his evidence. It is not in dispute that no process has been issued against Ethyl Wong, and the trying Magistrate has not exercised any jurisdiction over her. She was, therefore, a competent witness. For the reasons stated, in our opinion, the three fold contentions raised on behalf of the appellants-accused as regards the admissibility of the evidence of Ethyl Wong should fail.
40. Before we proceed to the next point, it is necessary to refer briefly to one of the contentions raised by Mr. Khandalawala that the trying Magistrate had no jurisdiction to issue process and proceed against Ethyl Wong- by virtue of the provisions of Section 187A of the Sea Customs Act. Section 187A reads :
187A. No Court shall take cognizance of any offence relating to smuggling of goods punishable tinder item 81 of the Schedule to Section 167, except upon complaint in writing, made by the Chief Customs-Officer or any other officer of Customs not lower in rank than an Assistant Collector of Customs authorised in this behalf by the Chief Customs-Officer.
41. Now, in our opinion all that is prohibited under the said Section 187A, is taking-cognizance of any offence relating to smuggling of goods punishable under item 81 of the Schedule to Section 167, in absence of a complaint in writing by the Customs Officer mentioned in the section. But that does not mean that when a complaint has been made by the Customs Officer, it is not open to the Magistrate before whom the complaint has been lodged, to proceed against a person against whom in his opinion there is sufficient material on record, even if his name is not mentioned as an accused in the complaint filed by the Customs Officer. To put such a construction on Section 187A, as contended by Mr. Khandalawala is, on the language of the section itself, in our opinion, not warranted.
42. It is next urged by Mr. Jethmalani that, at any rate, the circumstances of the case show that the Customs Officer must have granted pardon to Ethyl Wong, and by that inducement to Ethyl Wong, they have obtained her statement and persuaded her to depose in the Court. Grant of pardon by the Customs Officer was an illegality and Ethyl 'Wong, therefore, is not a duly pardoned accused, and therefore, her evidence is not admissible. The contention raised by Mr. Jethmalani has no foundation in the evidence on record. On the other hand, the evidence of both Ethyl Wong as well as Mishra clearly shows that no promise or inducement was held out to her, nor was any pardon granted to her by Mishra. Ethyl Wong in her evidence states:
I knew it what I was telling the Customs might be used against me. I knew when I was being taken to the Court that I was not being taken there to be prosecuted. Because they told me that I was being taken to Court to be a witness. They never told me that I was not going to be prosecuted.
and Mishra, P.W. 76 in his evidence has deposed:
I did not make her give false evidence in the statement, nor did I promise to her that she will retain her job and that she would not be prosecuted and will be allowed to go.
Mr. Jethmalani, however, contends that this evidence should not be accepted. 'The conduct on the part of Mishra, clearly indicates that he must have promised Ethyl Wong that she would not be prosecuted and thus induced her to make a statement and give evidence. The circumstances to which Mr. Jethmalani drew our attention are that Mishra, after recording her statement at the Air Tort, allowed her to go to her hotel; next day also he did not take any care to keep a watch on her premises to see that she did not escape; telling her that she is being taken to the Court for giving evidence; and after her examination-in-chief allowing her to go out of India. These circumstances, according to Mr. Jethmalani, clearly indicate that pardon must have been granted to her. We are unable to agree with Mr. Jethmalani that these circumstances indicate that Mishra must have granted pardon to Ethyl Wong. We see no reason to discard the evidence of Ethyl Wong and Mishra in this respect. Some argument also has been advanced by Mr. Jethmalani as regards the weight to be attached to the evidence of Ethyl Wong. We would deal with this contention when we proceed to examine the evidence of Ethyl Wong.
43. The next contention raised on behalf of the appellants-accused relates to the photo-stat copies of the documents seized during the course of the search of the Global Agencies office by the Hong Kong police on October 30, 1959. It is the contention of Mr. Jethmalani that the photo-stats of incriminating correspondence seized from the office of the Global Agencies must be excluded from evidence, as being violative of act. 20(5) of the Constitution, inasmuch as the accused person has been compelled to testify against himself. Compulsion exercised on Sanchitlal Daga, who was the manager of accused No. 1, is compulsion on accused No. 1 himself. Even assuming that compulsion, if any, exercised on Daga would amount to exercise of compulsion on accused No. 1, the question still remains whether, in the circumstances of the case, it can be said that there was any compulsion exercised on Daga at the time of the seizure of documents and if any compulsion was exercised whether the provisions of Article 20(5) have been violated. Article 20(5) is in following terms:
(3) No person accused of an offence shall be compelled to be a witness against himself,
In order to attract the provisions of this clause, it must first be established that Daga was accused of an offence at the time the documents were seized from him, and, secondly, it must be established that he was compelled to be a witness against himself. Clause (5) of Article 20 has been construed by their Lordships of the Supreme Court in M.P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) and State of Bombay v. Kathi Kalu : 1961CriLJ856 .
44. In Sharma's case their Lordships observed:
Analysing the terms in which, this fundamental right has been declared in our Constitution, it may be said to consist of the following components: (1) It is a right pertaining to a person 'accused of an offence'; (2) It is a protection against 'compulsion to be a witness' and (3) It is a protection against such compulsion resulting in his giving evidence 'against himself'.
Considering the question whether the seizure of the document in a search and tendering of that document at the trial amounts to a testimonial act of a person who is put on trial, their Lordships observed in para. 18 as follows (p. 306) :.A notice to produce is addressed to the party concerned and his production in compliance therewith constitutes a testimonial act by him within the meaning of Article 20(3) as above explained. But a search warrant is addressed to an officer of the Government, generally a police officer. Neither the search nor the seizure are acts of the occupier of the searched premises. They are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense.
In paragraph (10) of the report, it was observed (p. 304) :.to be a witness is nothing more than 'to furnish evidence', and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes.
The aforesaid observations gave rise to conflicting decisions by different High Courts. Their Lordships, therefore, reconsidered the whole question again in State of Bombay v. Kathi Kalu, and after elaborately considering the provisions of Article 20(5) of the Constitution,-their Lordships came to the following conclusions (pp. 1816-1817):
(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.
(3) 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to. determine the guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the-expression 'to be a witness'.
(5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing,
(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.
45. In the light of these principles, the facts of the present case will have to he scrutinised. The first question that arises is whether at the time of the seizure, either Sanchitlal Daga or Laxmipat were accused within the meaning of Article 20(5) of the Constitution. Now, the search was held on October 30, 1959, in Hong Kong. Nothing has been shown to us to hold that any formal accusation was made against either Laxmipat or Daga at the time the search was made. A reference was made to two applications made by the Customs Officer for issue of a search warrant of the premises of accused No. 1 in Calcutta and accused No. 3 in Bombay, presumably to show that a formal accusation was made against Laxmipat Choraria. These applications are on record. When these applications are read, it becomes clear that they do not contain any formal accusation as such against either Sanchitlal Daga or Laxmipat Choraria or any other accused, but speak of a mere suspicion of an offence having been committed by them. In our opinion, therefore, it has not been established that on the day the search was effected at Hong Kong and the documents were seized, either Laxmipat or Daga were accused persons within the meaning of Article 20(5) of the Constitution.
46. Turning to the next ingredient, seizure of the documents in the course of the search in Hong Kong also cannot be called a testimonial act of Daga, and therefore, it cannot be said that Daga had been a witness against himself when the documents were seized by the Hong Kong police from the office of the Global Agencies. Lastly, there is no evidence at all that any compulsion has been exercised on Daga at the time. On the other hand, the evidence of the officers concerned clearly shows that Daga had raised no protest of objection at the time the search was made and documents seized, nor was any threat given to Daga. Further, Daga has nowhere stated in his examination that there was any threat given to him or coercion used on him in the matter of seizure of the documents. In our opinion, therefore, not a single ingredient of Article 20(5) has been established in this case.
47. It is next contended by Mr. Jethmalani that even assuming that the documents from the Global Agencies were legally seized on October 30, 1959, they were illegally detained after the Hong Kong police had completed inspection of these documents and it was found that the contents of those documents did not disclose any offence against the colony law. Mr. Jethmalani then argues that the photo-stat copies of the documents were made after the inspection had been completed by the Hong Kong police. The copies are copies of illegally detained documents, and are therefore, inadmissible in evidence. It is not possible to accept this contention inasmuch as on the evidence on record, it has not been established that the photo-stat copies of these documents were made during the period when the documents were illegally detained. As already stated, the documents were seized on October 30, 1959. They were taken by Williams of the Hong Kong police. The evidence of Shriwastava shows that he did not know anything about the seizure of the documents prior to October 31, 1959. He went to Hong Kong on November 1, 1959 and returned to India by December 1 or 2, 1959. The photo-stat copies and copies made otherwise were all made between the period November 1, 1958, and December 1 or 2, 1959. Nothing has been pointed out by Mr. Jethmalani from the evidence on record to show at what point of time or date the Hong Kong police had completed the inspection of the documents and were satisfied that the documents did not disclose any offence under the colony law. The only piece of evidence which was brought to our notice was the following statement of Williams in the cross-examination:
It is correct that after inspection of the documents was completed we were satisfied that no offence against the law of the colonies was disclosed from these documents.
The statement, however, does not speak about the point of time when the inspection was completed. On the other hand, the statement of 'Williams which immediately follows the aforesaid statement on which Mr. Jethmalani relies indicates that the Hong Kong Police had not reached a conclusion even upto February 17, 1960, that the documents did not disclose an offence under the colony law. That statement of Williams is as follows:
When we returned these documents to accused No. 6 on 17-2-60 we were not completely satisfied that no offence was disclosed against the law of the colony. That is why we asked him to give an undertaking to produce the documents whenever required.
The statement of Williams that they were not completely satisfied even when they returned the documents on February 17, 1960, does not appear to be exactly correct as his subsequent cross-examination on the basis of his affidavit would show. That part of the cross-examination indicates that by about February 15, 1960, the Hong Kong police were satisfied that no offence under the law of the colony was disclosed by these documents. We are concerned with the period November 1, 1959, to December 1 or 2, 1959, and there is nothing on the record which would indicate that during that period there was any illegal detention of the documents. In view of our aforesaid conclusion that it has not been established that during the aforesaid period, namely, from November 1, 1959, to December 1 or 2, 1959 there was an illegal detention of the documents, and our finding that the photo-stat copies and other copies were prepared during that period, it is not necessary to deal with the academic contention raised by Mr. Jethmalani that illegal detention of the documents would amount to deprivation of the property within the meaning of Article 31(i) and would also be violative of Article 19(1)(f) of the Constitution.
48. It is next argued by Mr. Jethmalani that, at any rate, the production of the documents by Daga in pursuance of the undertaking given by him amounted to compulsion within the meaning of Article 20(5) of the Constitution and, therefore, the photo-stat copies of these documents are inadmissible in evidence. This argument overlooks two material facts. Daga has never stated that there was any direct or indirect compulsion either in the matter of taking an undertaking from him or his production of the documents on April 29, 1960, in. pursuance of the undertaking. There is, therefore, no foundation for the argument that there was any compulsion when the original documents were again produced by Daga on April 29, 1960, in pursuance of the undertaking. Further the other material fact is that the photo-stat copies were not prepared subsequent to obtaining possession of those documents on April 29, 1960. On. the other hand, the photo-stat copies were prepared between the period November 1, 1959 to December 1 or 2, 1959. As already stated, the detention of the documents during this period has not been established to be illegal. This; argument of Mr. Jethmalani also must fail.
49. For the reasons stated above, in our opinion, the photo-stat copies and copies; otherwise made of documents seized from the office of Global Agencies are; admissible evidence.
50. The rest of the judgment is not material to this report.